Mayer's Estate, In re

• Decision Date: 02 March 1965
• Citation: 133 N.W.2d 322,26 Wis.2d 671
• Parties: In re ESTATE of Royal P. MAYER, Deceased. Lillie MAYER, Appellant, v. Clement W. MAYER et al., individually and as co-executors of the Estate of Royal P. Mayer, Deceased, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 322

133 N.W.2d 322

26 Wis.2d 671

In re ESTATE of Royal P. MAYER, Deceased.

Lillie MAYER, Appellant, v. Clement W. MAYER et al., individually and as co-executors of

the Estate of Royal P. Mayer, Deceased, et al., Respondents.

Supreme Court of Wisconsin.

March 2, 1965.

Merten, Connell & Sisolak, Walter L. Merten, Milwaukee, for appellant.

Marth & Marth, West Bend, for respondents.

BEILFUSS, Justice.

The first issue for consideration is,--does the complaint state facts sufficient to constitute a cause of action?

When a complaint is challenged by demurrer as to its sufficiency the general rule is that it should be liberally construed and upheld if it expressly or by reasonable inference states any cause of action. Secs. 263.07 and 263.27, Stats. Gregory III, v. Madison Mobile Homes Park (1964), 24 Wis.2d 275, 128 N.W.2d 462; Rogers v. City of Oconomowoc (1962), 16 Wis.2d 621, 115 N.W.2d 635.

The material allegations of the complaint are, in substance: Royal P. Mayer died February 8, 1962; the plaintiff is his widow; his will, dated August 16, 1959, was admitted to probate in county court for Washington county in March of 1962; a copy of the will is annexed to the complaint and made a part thereof; requests were made by plaintiff for a copy of the inventory on June 5, 1962 and thereafter; a copy of the inventory and appraisal was received by the plaintiff November 28, 1962, and was annexed to the complaint and made a part thereof; the sole property of the deceased was of the value of $20,726.32, and the value of the property held jointly with his children was $37,836.20; under the terms of the will the plaintiff widow was to receive a life estate in the homestead with the remainder to the children, certain household goods, a right to rent the homestead, and the right to occupy a hunting lodge with the children; the remainder of the estate was to be divided equally between the three children; and as to each of the three children in separate causes of action the deceased fraudulently and secretly did create joint tenancies in his personal property with his children but retained dominion of the funds for the purpose and with the intent of avoiding his obligation and duty of reasonable support of his wife after his death, and that the children knew of his intent and conspired and colluded with him to defeat plaintiff's right to maintenance and support following the death of her husband.

Upon these allegations the plaintiff demands the transfers creating the joint tenancies to be set aside and the proceeds be paid into the estate of the deceased.

The point dealing with the allegations of fraud may be summarily disposed of in favor of the plaintiff. While the word 'fraudulently' standing alone is a mere conclusion and will not support a cause of action, the allegation that an act was done fraudulently when considered together with other allegations of the complaint that fairly apprise the defendant of the specific acts and condition may be considered as an allegation of fact. Laun v. Kipp (1914), 155 Wis. 347, 145 N.W. 183, 5 A.L.R. 655, takes this liberal view as to the sufficiency of allegations of fraud. In Sederlund v. Sederlund (1922), 176 Wis. 627, 634, 187 N.W. 750, 752, this court did hold that a widow may have a cause of action to recover personal property of the husband fraudulently transferred prior to death. (Recovery, however, was denied in that action.)

'Under the statutes of this state, the husband is prohibited from incumbering or transferring his homestead without the signature of his wife. The wife also has inchoate rights of dower. The wife cannot be deprived of such rights by the husband without her consent. As to personal property, however, the situation is radically different. With the exception of the restrictions above referred to, a husband has the absolute right during his lifetime to make absolute disposition of his personal property as he deems fit, the wife having no vested or quasi vested interest in such property. True, under the statutes of our state as they existed at the time of the assignments with respect to the personal property, certain provisions are made for the benefit of a widow which she is authorized to claim, and which she is entiled to, whether the husband dies testate or intestate. She is also entitled, under subdivision 6 of section 3935 of the Statutes, in case of intestacy, to an equal share in the residue of the personal property with a child of the deceased, provided such deceased leaves but one child surviving him, and in all other instances she is entitled to one third of such residue. It is evident that these statutes are designed to enable the widow to obtain in any event such share of the estate of the deceased as the Legislature deemed reasonable. The statute is a beneficent one, and recognizes the rights of a widow resulting from the obligations of marriage.

'Where, therefore, a husband, shortly before his death, purports to transfer all or the greater portion of his property to others, which transfer has a tendency to frustrate the beneficent design of the statute with respect to a wife's distributive share in her husband's personal property, the amount of proof necessary to stamp such a transfer as fraudulent depends in every instance upon the particular facts existing in each case. * * *'

Giving the complaint in this action the required liberal construction, we conclude it sufficiently states a cause of action for invasion of the plaintiff's rights.

Although we have concluded that for the purpose of demurrer under a liberal construction the plaintiff states facts which constitute an invasion of her rights, does she state facts entitling her to relief? Can any right or remedy in her favor be enforced?

We cannot consider the 'wherefore' clause of the complaint to determine whether a cause of action is stated. It forms no part of the complaint. D'Angelo v. Cornell Paperboard Products Co. (1963), 19 Wis.2d 390, 120 N.W.2d 70; Waldheim v. Bienenstok (1945), 248 Wis. 37, 20 N.W.2d 633; Spencer Co-op Live Stock Shipping Ass'n v. Schultz (1932), 209 Wis. 344, 245 N.W. 99; Whittier v. Atkinson (1941), 236 Wis. 432, 295 N.W. 781; Laun v. Kipp, supra; Hiles v. Johnson (1886), 67 Wis. 517, 30 N.W. 721. Of course, we can consider the wherefore clause to aid us in determining the intention of the pleader. North Side Loan & Building Society v. Nakielski (1906), 127 Wis. 539, 106 N.W. 1097.

It is evident that plaintiff seeks to have certain transfers set aside; to have the proceeds so recovered deposited in the estate because the will gives plaintiff an inadequate share of decedent's estate. The only inference permissibly flowing therefrom is that plaintiff has instituted this cause of action so as to recover her statutory share of her husband's estate, increased by the amount of money the estate would recover from a setting aside of the transfers of property by the decedent.

Plaintiff argues that we cannot consider future events in determining whether a cause of action is stated. In general, this may be true. But in seeking to find a cause of action for plaintiff we must be permitted to determine what rights of hers she seeks to have enforced.

Viewed this way, we think a fatal omission of fact appears on the face of the complaint. Plaintiff has not pleaded that she elected to take against the will of her deceased husband. This is material so far as her right of recovery bears on whether plaintiff has stated a cause of action.

It must not be overlooked that a cause of action to set aside the transfers, in vacuo, is meaningless. Somebody must benefit by such action. Here plaintiff is seeking such a benefit,--at lease this is the only fair inference to be drawn from the complaint. The consequences of plaintiff's action to set aside these transfers would be to place the assets in the estate. Therefore, our inquiry must be whether plaintiff can benefit by her (possible) right to have such transactions set aside.

The omission to plead the fact of election against the will cannot be supplied by the court. The presumption is that such fact does not exist. Meyer v. Briggs (1963), 18 Wis.2d 628, 119 N.W.2d 354; Village of Sun Prairie v. Wisconsin Power & Light Co. (1933), 213 Wis. 277, 251 N.W. 605; Hoard v. Gilbert (1931), 205 Wis. 557, 238 N.W. 371. Further, were the election in fact timely filed and appearing in the record, we still could not consider it. A demurrer cannot be aided by facts appearing in the record but which do not appear upon the face of the complaint. Benedix v. German Ins. Co. (1890), 78 Wis. 77, 47 N.W. 176.

On the face of the complaint it appears that no election has been made,--timely or otherwise. There being no election, the proceeds of recovery would go into the estate and would have to be distributed in accordance with the terms of the will. Under the terms of the will the plaintiff could not benefit thereby. Under the complaint she states no cause of action entitling her to relief, therefore the demurrer must be sustained.

Ordinarily, when a demurrer to a complaint is sustained upon the ground that it does not state facts sufficient to constitute a cause of action, the plaintiff is given the right to plead over. This right is not extended in those cases where it is apparent that no valid cause of action can...